I recently discussed the Supreme Court’s affirmance of a decision rejecting constitutional arguments that the District of Columbia is entitled to a vote in Congress. I have repeatedly testified and written on the constitutional barriers to such a vote absent statehood. See Jonathan Turley, Too Clever By Half: The Partial Representation of the District of Columbia in the House of Representatives, 76 George Washington University Law Review 305-374 (2008). Given those long-standing views, I felt that the blog should hear from a leading intellectual with an opposing perspective. One of the briefs written in support of the district in the recent litigation was from constitutional scholars, including my colleague Alan B. Morrison, Lerner Family Associate Dean at George Washington Law School. I reached out to Professor Morrison to see if he would offer a response on the ruling and the underlying issues. I was delighted when he accepted.

For many on this blog, Professor Morrison needs little introduction. He has not only previously written on the blog, but he is one of the most respected legal figures in the country with extensive litigation and public interest experience. His views on this and every subject are worth the most serious consideration by readers.

TIME TO GIVE DC RESIDENTS A VOTE IN CONGRESS

Alan B. Morrison

As a lawyer who worked with counsel for D.C. residents who want to be able to vote for members of Congress, and who joined amicus briefs supporting the plaintiffs in their effort to persuade the courts to grant them the vote, I could not let my colleague Jonathan Turley’s column go unanswered.  The case is over, but the broader question of whether Congress has the legal authority to pass a law giving the District a voting representative in Congress is very much alive.  But before explaining why Congress has that power, there are a few facts that bear on that question, of which most readers are not aware.

During the First Congress that decided that the Capital should be in what is now Washington DC,  there were vigorous debates about where it should be, with New York, Philadelphia, and Virginia all urging that it be there.  At no time did anyone suggest that, if the federal enclave was to be in their state, those who lived there would lose the right to vote for members of Congress, yet that is what the opponents of giving DC residents that vote argue is compelled by the Constitution.  Of course, that could never have happened if the Capital were any place else because that state would protect those residents because that state can vote in Congress, unlike the District.

Second, when Congress decided on the location for the capital, it took land from both Maryland and Virginia, but left those states in charge of the federal territory for ten years.  During that decade, the few thousand individuals who lived there continued to vote for members of Congress from their former state even though they no longer lived there.  It was only when Congress assumed the legislative power to manage the District by new legislation that the District’s residents lost their vote for Congress, but with no explanation of why that should be.

Third, Congress and the courts have recognized that Congress has the power to confer the right to vote for Congress on individuals who do not reside in a state.  Those include persons living permanently overseas and even extends to those who have never lived in any state – such as children of expatriates.  In addition, the Supreme Court upheld the right of individuals who live on the grounds of NIH, another federal enclave, to vote in Maryland congressional elections, even though they did not reside in Maryland.

All of these facts, which the three-judge district court largely ignored, and no party disputed, confirm the conclusion that Congress, using its power under Article I, section 8, clause 17 “To exercise exclusive Legislation in all Cases whatsoever, over the District [of Columbia]” may authorize DC residents to vote for a voting member of the House of Representatives, which is what the plaintiffs asked the courts to order in their now-concluded lawsuit.  In fact, both Houses have, at different times, voted to do just that, based in significant part on the testimony of two former D.C. Circuit Judges, one from each party: Judge Patricia Wald and Judge Kenneth Starr.  Moreover, neither the plaintiffs’ opponents nor the lower court in the litigation ever pointed to anything in the Constitution that expressly precluded Congress from granting the plaintiffs’ request.

In the view of this not-totally disinterested lawyer, the three-judge court never came to grips with the fundamental legal question of whether Congress had the power to confer the right of DC residents to vote for a voting member of the House, but instead concluded that the court was not required to order that the right be implemented.  But that decision in no way forecloses Congress itself from enacting a law tomorrow, granting the right of DC resident to vote for their own member of Congress.

To those of us who live in the District, it is obvious why we will not give up the fight to remove our second-class citizen status, eventually by becoming a state. But in the meantime, giving us a voting member of the House will make it much more difficult for that body to include riders in other legislation that deny the District the ability to order its own affairs the way that every other state can do and that citizens of no other state would have to accept because their government has the vote to be able to defend itself in Congress.

OK, Congress, the courts have made it clear that they will give us the vote.  When are you going to do your legal and moral duty and give us that right?